After noting that the jury had reconvened after rendering its verdict on the main claim to consider the Yost counterclaim and had awarded appellees $15,000 against appellant on that counterclaim, the trial court accepted that verdict and made it the judgment of the court, subsequently denying appellant's motion for judgment n.o.v. Appellant contends that the trial court erred by denying its motion for judgment n.o.v. because the trial court's earlier rulings denying appellees' motions for summary judgment and directed verdict constituted "binding determinations" that appellant's complaint was substantially justified, citing Felker v. Fenlason, 197 Ga. App. 476, 477 (2) ( 398 S.E.2d 754) (1990), Bouchard v. Fowler, 193 Ga. App. 697 ( 388 S.E.2d 874) (1989), and Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614-615 ( 379 S.E.2d 555) (1989). The Supreme Court recently overruled the principle enunciated in those cases that earlier rulings by a trial court can constitute a "binding determination" that a plaintiff's complaint did not lack substantial justification so as to bar a defendant from recovering damages for abusive litigation under OCGA § 9-15-14.

The Supreme Court in Porter v. Felker, 261 Ga. 421 ( 405 S.E.2d 31) (1991) has overruled the principle set forth in a line of cases in this court that the denial of a defendant's motion for summary judgment on the plaintiff's complaint constitutes a "binding determination," id. at 422 (2), that the plaintiffs claim did not lack substantial justification. See, e.g., Contractors' Bldg. Supply v. Gwinnett Sash Door, 199 Ga. App. 38, 41 (4) ( 403 S.E.2d 844) (1991); Felker v. Fenlason, 197 Ga. App. 476, 477 (2) ( 398 S.E.2d 754) (1990); Reynolds v. First Port City Bank, 196 Ga. App. 63 (2) ( 395 S.E.2d 262) (1990); Bouchard v. Fowler, 193 Ga. App. 697-698 ( 388 S.E.2d 874) (1989); Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614-615 ( 379 S.E.2d 555) (1989). Because trial courts are not "infallible" when determining whether questions of fact exist on motions for summary judgment, Porter, supra at 422 (2), a trial court's ruling on a defendant's motion for summary judgment on a plaintiff's complaint does not control the merits of a subsequent motion for summary judgment on the defendant's abusive litigation counterclaim arising out of the filing of that complaint.

The evidence did not demand a contrary finding. Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613 ( 379 S.E.2d 555) (1989); Bouchard v. Fowler, 193 Ga. App. 697 ( 388 S.E.2d 874) (1989); General Refractories Co. v. Rogers, 240 Ga. 228, 235 (2) ( 239 S.E.2d 795) (1977). Judgment affirmed. Pope and Andrews, JJ., concur.

Also, the court's denial of M M's summary judgment motion premised on the statute of limitation defense precludes the conclusion that the position taken by Burney under the discovery rule lacked merit. Colquitt v. Network Rental, 195 Ga. App. 244, 246 (2 b) ( 393 S.E.2d 28) (1990); Bouchard v. Fowler, 193 Ga. App. 697, 698 ( 388 S.E.2d 874) (1989); Biosphere Indus. v. Oxford Chemicals, 190 Ga. App. 613, 614 ( 379 S.E.2d 555) (1989). Therefore, the imposition of attorney fees and costs upon Nix and Cowart was improper and that order is vacated.

(a) Because the area of non-compete clauses is one in which similar clauses beget dissimilar results and each case must be considered on its own particular facts, see Fuller v. Kolb, 238 Ga. 602, 605 ( 234 S.E.2d 517) (1977) (dissenting opinion), the suit here did not suffer from such a complete absence of justiciable issues of law and fact that no court would accept it. Yost, supra; Deutz-Allis Credit Corp. v. Phillips, 193 Ga. App. 79 ( 387 S.E.2d 34) (1990). Colquitt contends the trial court's reliance on its original summary judgment order as establishing "substantial justification," which it labels probable cause, was erroneous. It was not. Bulldog Trucking v. Adams, 259 Ga. 382 ( 380 S.E.2d 874) (1989); Bouchard v. Fowler, 193 Ga. App. 697 ( 388 S.E.2d 874) (1989); Biosphere, supra; compare Howe v. Roberts, 259 Ga. 617, 619 (2) ( 385 S.E.2d 276) (1989). (b) Likewise, the denial of OCGA § 9-15-14 attorney fees and costs of litigation was not an abuse of discretion under these circumstances.

OCGA § 9-15-14 (f) vests the trial court, without jury, with responsibility for determining whether an award should be made. Ferguson v. City of Doraville, 186 Ga. App. 430, 433 ( 367 S.E.2d 551), overruled on other grounds, Vogtle v. Coleman, 259 Ga. 115, 119, fn. 8 ( 376 S.E.2d 861). Thus, the jury verdict awarding damages on Deljou's abusive litigation claim, even reduced to judgment, did not mandate the award of attorney fees. Bouchard v. Fowler, 193 Ga. App. 697 ( 388 S.E.2d 874) (1989). Accordingly, the trial court did not err by refusing to award attorney fees merely because Deljou prevailed on the abusive litigation claim.